Citation Nr: 1636095 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 10-36 210A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee. 2. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1968 to September 1991. The issues on appeal as to knee disabilities comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision on behalf of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A subsequent September 2010 rating decision granted a corrective, increased 10 percent rating for the right knee disability. These issues were most recently remanded for additional development in June 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his left and right knee disabilities are more severely disabling than reflected by the current evaluations. Although VA examinations have been performed in this case, the provided examinations did not include all necessary findings for adequate determinations. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that an adequate orthopedic examination of the knees should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). Such information is missing from the most recent (September 2014) VA examination report. The June 2014 remand directives in this case included a request that VA obtain any outstanding treatment records dated from January 2010 and, in essence, that if sufficiently identified records cannot be obtained to notify the Veteran of the efforts made to obtain the evidence and why further efforts would be futile. Although the record shows that the Veteran did not respond with any specific information as to pertinent VA or non-VA treatment, in an October 2014 supplemental statement of the case the AOJ inaccurately implied in the adjudicative action section that VA treatment records had been obtained and associated with his file in June 2014. A review of the VA medical reports obtained in June 2014 include only a single administrative note indicating the Veteran failed to report of an examination in April 2014. While the present record does not indicate the Veteran has, in fact, received any pertinent VA treatment since January 2010, appropriate action must be taken to obtain any such records and to properly notify the Veteran of VA actions. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, the Board finds the Veteran must be afforded an additional VA examination. Prior to the examinations, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA healthcare provider who have treated him for his knee disabilities since 2010. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for an appropriate VA examination for the following opinions: a) As to the current nature and extent of his service-connected left and right knee disabilities. The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary b) As to whether there is or has during the course of this appeal been any period of marked interference with employment as a result of his service-connected disabilities. The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with the other etiology opinions provided. All examinations, tests, and studies must be conducted. An explanation must be provided if the examiner finds that X-ray studies are not required for adequate opinions. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 3. Thereafter, the AOJ should address the issues on appeal as well as any additional issues perfected for appellate review. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).